BVA9508131
DOCKET NO. 93-17 050 ) DATE
)
)
On appeal from the decision of the
Department of Veterans Affairs Regional Office in Boston,
Massachusetts
THE ISSUE
Entitlement to an increased evaluation for lumbosacral spine
residuals with right sciatica, currently rated as 40 percent
disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. W. Loeb, Counsel
INTRODUCTION
The veteran served on active duty from June 1957 to October 1959.
This case came before the Board of Veterans' Appeals (Board) on
appeal from a December 1991 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Boston,
Massachusetts.
An August 1991 rating decision proposed to reduce the veteran's
40 percent evaluation for his service-connected lumbosacral spine
residuals with sciatica to 20 percent under the provisions of
38 C.F.R. § 3.105(e) (1994). A December 1991 rating action
reduced the above noted 40 percent evaluation to 20 percent,
effective March 1, 1992. The veteran testified at a personal
hearing at the RO in February 1993, and a hearing officer's
decision later in February 1993 concluded that the veteran's back
disability more nearly approximated the criteria for a 40 percent
evaluation. A March 1993 rating action continued the 40 percent
evaluation for lumbosacral spine residuals with sciatica from
September 1989. The veteran subsequently contended that his back
disability warranted an evaluation higher than 40 percent.
The veteran contended in a statement received by the VA in July
1994 that he was unemployable due to his service-connected back
disability. Since this issue has not been developed for
appellate review, it is referred to the RO for appropriate
action.
REMAND
The most recent VA examination report on file was in November
1991. However, the veteran underwent surgery on his low back in
September 1994 at New England Baptist Hospital. The Board notes
that the only clinical evidence of the surgery on file is a
September 1994 Operative Report.
The Board also notes that it was essentially contended on behalf
of the veteran in March 1994 that the June 1989 rating decision
was clearly and unmistakably erroneous in reducing the veteran's
60 percent evaluation for his back disability to 40 percent. It
was contended on behalf of the veteran in September 1994 that a
temporary total disability rating is warranted, under 38 C.F.R.
§§ 4.29, 4.30 (1994), for his hospitalization and treatment for
his back disability at New England Baptist Hospital in September
1994. Since the issues of entitlement to a temporary total
rating and whether the rating action of June 1989 was clearly and
unmistakable erroneous are inextricably intertwined with the
certified issue of entitlement to an increased evaluation for
lumbosacral spine residuals with sciatica, they must be
adjudicated prior to the Board's consideration of the certified
issue. Harris v. Derwinski, 1 Vet.App. 180 (1991).
Based on the above, the Board finds that additional development
is required prior to final disposition of this case. Therefore,
this case is being REMANDED to the RO for the following actions:
1. The veteran should be permitted to
submit any additional evidence that is
pertinent to the certified issue on appeal.
He should also be requested to provide the
complete names, addresses, and dates of
treatment of any physicians or facilities,
including the VA, that have treated him for
his service-connected lumbosacral spine
residuals with sciatica since November
1991, which is the date of the most recent
VA examination report on file. Any medical
provider identified should be asked by the
RO for copies of the veteran's clinical
records not currently on file. Any records
obtained should be associated with the
claims folder. The veteran should be asked
to sign any necessary consent forms for
release of his private medical records.
2. The RO should obtain, and associate
with the claims file, copies of the
veteran's September 1994 hospitalization at
New England Baptist Hospital, 125 Park Hill
Avenue, Boston, Massachusetts 02120.
3. The veteran should be given special
orthopedic and neurological examinations,
in accordance with the VA Physician's Guide
for Disability Evaluation Examinations, to
determine the current nature and severity
of his service-connected lumbosacral spine
residuals with sciatica. The examiner
should obtain a recent employment history
from the veteran, including notation of any
time lost from employment due to his low
back disability. All necessary tests and
studies, including x-rays studies, should
be conducted and all findings should be
reported in detail. The orthopedic
examiner should set forth detailed findings
regarding limitation of motion and any
other functional loss caused by the
veteran's service-connected low back
disability, as well as functional loss due
to pain or weakness, and the neurological
examiner should note any neurological
symptomatology. The claims folder must be
made available to the examiner for review
prior to each examination.
4. The RO should then readjudicate the
issue on appeal, to include consideration
of the provisions of 38 U.S.C.A. § 5107(b)
(West 1991), 38 C.F.R. §§ 3.321(b)(1) and
4.7 (1994). The RO should also adjudicate
the additional intertwined issues of
entitlement to a temporary total rating due
to hospitalization and treatment of a low
back disability in September 1994 and
whether the rating decision of June 1989
was clearly and unmistakably erroneous in
reducing the veteran's 60 percent
evaluation for his lumbosacral spine
residuals with sciatica to 40 percent.
With respect to the additional intertwined
issues, if they are denied and a timely
notice of disagreement is filed, these
issues should be addressed in a
supplemental statement of the case.
When the above actions have been completed, unless the benefits
sought are granted to the satisfaction of the veteran, the
veteran and his representative should be provided with a
supplemental statement of the case on all issues in appellate
status and given the applicable time period to respond. The case
should then be returned to the Board, if otherwise in order. The
veteran need take no action until notified.
EUGENE A. O'NEILL
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to be
assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This action has been taken in
accordance with the Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 303, 108 Stat. 4645, ___ (1994), and is in
the nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal. 38 C.F.R.
§ 20.1100(b) (1994).